Can Active Duty Servicemembers Delay Court?

Bringing someone to court is virtually always a stressful experience, but matters quickly become even more complicated if the defendant is an active duty servicemember. Under the Servicemembers Civil Relief Act, an important law that protects the civil interests of members of the uniformed services while they are busy performing duty for their country, there are some circumstances in which a servicemember can delay court proceedings.

If you plan to bring an active duty servicemember to court for any reason, it is important to know when these rules apply and what will happen if they do. Arming yourself with this knowledge will help to ensure that justice is served and keep your expectations reasonable.

When do servicemembers qualify for judicial relief? The first question to ask is whether the complaint that you are making is civil or criminal in nature. Servicemembers qualify for judicial relief in civil matters, but not in criminal matters.

Civil matters are those that are brought by an individual against another individual. Jail time is not on the table – generally reparations are the only result of civil matters. Examples of civil lawsuits are failure to pay rent, child custody cases in which there is no wrongdoing or copyright claims.

Criminal cases are more serious, and as a result, servicemembers do not qualify for judicial relief in such matters. Criminal cases are brought by the state against an individual, even when another individual is accusing the defendant. Examples of criminal cases are murder, theft or assault.

What judicial relief do servicemembers get in civil cases? If the case that you are bringing against an active duty servicemember is indeed civil, then there are a number of additional steps you will likely need to take. The first step is verify whether the individual is covered under the Servicemembers Civil Relief Act. It is important not to take corrective matters into your own hands until the Court awards you a judgment. For example, if you are a landlord, or have rented a storage locker to a person, or provide telephone service, you will have serious problems if you decide simply to lock the person out, sell the belongings, or terminate the telephone contract.

After you file suit, the defendant will need to be notified. This is often referred to as “service of process” and involves the official delivery of a summons or other notification. To ensure that things proceed appropriately, you should inform the court if you know that the person against whom you are bringing charges is an active duty servicemember. You will have to produce a military affidavit indicating whether the defendant is protected under the Servicemembers Civil Relief Act. If you do not and the court enters a default judgment against him or her because his or her service prevented him or her from attending court, he or she can request that the matter be re-opened and that the default judgment be set aside.

Either way, the SCRA allows the servicemember to request a mandatory stay of proceedings for at least 90 days. If after this time the servicemember’s duty to the U.S. government still prevents him or her from attending court, the court may decide to implement another stay of proceedings. After any further stays, it is possible that the court will rule in a way that favors the servicemember in light of the restrictions of his or her duty – your interests will also be considered. Otherwise, the civil case will proceed normally after this point.

What else should I keep in mind? It is important to note that these protections could apply even AFTER a person has left active duty and may also apply to a dependent of a servicemember. An active duty servicemember’s dependent is defined as any person for whom the servicemember pays more than half of all living costs. This could be a wife, child, friend or relative. Even if the dependent is located domestically and does not travel with the servicemember, the protections of the SCRA remain in effect.

It should also be noted that the penalties for non-compliance with the SCRA can be severe. Landlords who have attempted to evict a servicemember without going through the proper channels, for example, often have faced high fines or even jail time. Positively identifying active duty servicemembers and adhering to the SCRA is essential. The Servicemembers Civil Relief Act Centralized Verification Service’s sole function is to help you with this important requirement.

Attorney Roy Kaufmann serves as the Director of the Servicemembers Civil Relief Act Centralized Verification Service, located in Washington, D.C. As a recognized authority on the Servicemembers Civil Relief Act, Mr. Kaufmann has published hundreds of articles and hosted many webinars. His teachings help law firms and businesses to remain compliant with the SCRA rules and regulations so as to avoid costly fines.

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